IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Martha Harris, :

 Plaintiff, :

 v. : Case No. 2:11-cv-710

Michael J. Astrue, : JUDGE JAMES L. GRAHAM

Commissioner of Social Magistrate Judge Kemp

Security, :

 Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Martha Harris, filed this action seeking review

of a decision of the Commissioner of Social Security denying her

applications for disability insurance benefits and supplemental

security income. Those applications were filed on March 30,

2006, and alleged that plaintiff became disabled on January 1,

2000. 

After initial administrative denials of her claim, plaintiff

was given a hearing before an Administrative Law Judge on July 2,

2009. In a decision dated August 24, 2009, the ALJ denied

benefits. That became the Commissioner’s final decision on June

17, 2011, when the Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on October 7, 2011. Plaintiff filed her

statement of specific errors on December 14, 2011. The

Commissioner filed a response on February 15, 2012. No reply

brief was filed, and the case is now ready to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

beginning at page 399 of the record. Plaintiff, who was 26 years

old when her insured status expired and who has her GED,

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testified as follows.

Plaintiff has always had problems with her weight, and

weighed close to 400 pounds back in 2000. She had recently lost

some weight in an effort to get better control of her diabetes. 

She did not drive and had not driven since 2000, and she was

unable to sit more than half an hour on a car trip without

stopping to stretch and use the restroom. She had a few parttime jobs after 2000 but was unable to stay with them for very

long. Before that date, she had worked at a Wendy’s restaurant

as a cashier and sandwich maker, and she had been a sandwich

maker at a Burger King as well. She also worked in the kitchen

at a nursing home, as a child care worker, and at a candle

factory.

Plaintiff testified that she was unable to work due to her

diabetes. She had become insulin dependent several years before

the hearing, and was having trouble keeping her blood sugar under

control. She was not having any vision problems, however, and

she had normal sensation in her hands. She also suffered from

curvature of the spine, and she had been injured in the past both

in a fall and in a work-related accident, causing problems with

her upper back and lower back. At the time of the hearing, she

was also having swelling in her right knee. Additionally, she

had suffered from asthma all her life which was worse in hot

weather and was aggravated by dust. She used an inhaler but not

a breathing machine. Recently, she had been experiencing heart

palpitations, and she was depressed and anxious, although she had

not had treatment for those conditions in a long time. She also

testified to constant pain, but she took only Tylenol to control

it.

Plaintiff said that if she were on her feet too long or

sitting too long, that aggravated her pain. To alleviate pain,

she would put her feet up. Her legs also swelled on a daily

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basis. She could follow simple work rules but at times had

problems getting along with co-workers. She could read and

understand articles from the newspaper and pay her own bills. 

Plaintiff thought she could walk two to four blocks at a time,

could stand for a half hour or so, and could sit for half an hour

to an hour at a time. She could bend forward at the waist and

lift ten to twenty pounds. She could grasp and manipulate

objects with her hands. She cooked on a daily basis, did

laundry, ran the vacuum, and went grocery shopping. She also was

able to visit her daughter several times a week and to do some

crocheting and cross-stitching. She was having trouble sleeping

because of her need to use the restroom frequently, which was due

to her medication and her diabetes. She often napped during the

day.

III. The Medical Records

The medical records in this case are found beginning on page

102 of the administrative record. Because plaintiff’s two

assignments of error do not really implicate the medical records

directly, focusing, as they do, on the vocational testimony and

plaintiff’s obesity - and also because plaintiff’s statement of

errors makes only a passing reference to one report about her

physical impairments, that of Dr. Klein - the Court’s summary of

the medical records will also be fairly brief.

Most of the medical records in the file are from emergency

room visits. Plaintiff testified that she visited the emergency

room more than twenty times, usually for conditions which might

ordinarily be treated by a primary care physician, such as a sore

throat, diarrhea, a foot injury, neck pain, a rash, sinusitis,

bronchitis, and other similar medical problems. It appears

undisputed that during the entire relevant time frame, plaintiff

was morbidly obese.

There was a functional capacity assessment done by one state

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agency reviewer, and affirmed by another, stating that plaintiff

could do a limited range of light work. Her weight was

specifically taken into account in this assessment. (Tr. 136-43)

The report from Dr. Klein, done for the Ohio Department of

Job and Family services, shows plaintiff’s weight as 350+ pounds. 

His diagnoses were hypertension, diabetes, back pain, knee

sprain, and morbid obesity, among others. Dr. Klein stated that

plaintiff could sit for eight hours in a workday and do some

standing and walking as well, but was limited in her ability to

bend, reach, handle objects, and perform repetitive foot

movements. He also stated she was unemployable. (Tr. 301-02). 

IV. The Medical Testimony

Dr. Nusbaum, a medical expert, testified at the

administrative hearing. His testimony begins at page 433 of the

record.

First, Dr. Nusbaum testified that plaintiff was diabetic and

that the records did not reflect good control of her diabetes. 

She was also obese and had had abscesses of the cheek and

abdomen. The records showed a diagnosis of asthma although there

were no pulmonary function studies on file. She had moderate

diastolic hypertension and complained of back pain, although

there were no confirming studies. He believed that her

functional capacity and respiratory symptoms would improve

dramatically with weight loss.

As far as plaintiff’s residual functional capacity was

concerned, Dr. Nusbaum thought she could lift 25 pounds

occasionally and fifteen pounds frequently. She could sit,

stand and walk for two hours at a time and for up to six hours

for each activity in a work day. She could stoop, squat and

crouch only occasionally, and could not climb ladders. There

were no environmental restrictions documented in the record.

V. The Vocational Testimony

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Ms. Kaufman, a vocational expert, also testified at the

administrative hearing. After asking some questions of the

plaintiff, Ms. Kaufman began her testimony at page 437 of the

record. She testified that plaintiff’s past relevant work as a

fast food worker was light and unskilled, and the work at a

candle factory was light and semi-skilled. Plaintiff performed

the daycare worker job at the medium exertional level, but it is

usually classified as light and semi-skilled. Conversely,

plaintiff performed the kitchen helper job at the light level,

but that is usually a medium job and is unskilled. Plaintiff had

no transferable job skills.

If plaintiff had the ability to work which was described by

Dr. Nusbaum, Ms. Kaufman believed that plaintiff could still do

all of the light jobs she had performed before. If she also had

some limitations due to a psychological impairment, as described

by Dr. Wilcox, she could probably not do those jobs, but could

still work at various unskilled light jobs such as cleaner,

sorter and laundry worker, and could do about 20% of such jobs in

her locality, or about 3,600 positions. If, however, she were as

limited as Dr. Klein’s report stated, she could not work. The

same would be true if her testimony as to work-related

limitations were accepted. Taking a restroom break every half

hour for five to ten minutes would also be problematic.

VI. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 14

through 25 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured status requirements of the Social Security Act

through December 31, 2000, but not afterwards. Second, the ALJ

found that plaintiff had not engaged in substantial gainful

activity after her alleged onset date of January 1, 2000. As far

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as plaintiff’s impairments are concerned, the ALJ found that

plaintiff suffered from insulin dependent diabetes mellitus not

under very good control, morbid obesity, an abdominal abscess,

asthma with bronchitis, hypertension, sinusitis, and a dysthymic

disorder, which were collectively considered to be severe

impairments. The ALJ also found that these impairments did not

meet or equal the requirements of any section of the Listing of

Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform a reduced range of light work which required

no more than occasional stooping and kneeling, which did not

involve climbing ladders, and which did not involve high

production quotas or more than limited interpersonal contact. 

Giving her the benefit of the doubt, the ALJ found that plaintiff

could not do any of her past relevant work. However, the ALJ

accepted the vocational expert’s testimony that someone with such

limitations could perform a variety of light, unskilled jobs such

as cleaner and laundry worker. The ALJ also found that

approximately 3,600 light unskilled jobs within plaintiff’s

capacity to perform existed in the local economy and that number

was significant. As a result, the ALJ concluded that plaintiff

was not disabled and not entitled to benefits.

VII. Plaintiff’s Statement of Specific Errors

 In her statement of specific errors, plaintiff raises the

following issues. First, she argues that the vocational expert’s

testimony was not sufficient to allow the ALJ to find that

significant numbers of jobs exist which could be done by someone

who had the residual functional capacity which the ALJ attributed

to plaintiff. Second, she asserts that the ALJ did not properly

take her obesity into account in determining her residual

functional capacity. The Court generally reviews the

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administrative decision under this legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

One aspect of plaintiff’s first assigned error is that the

vocational expert identified only three specific jobs which

plaintiff could perform - cleaner, sorter, and laundry worker -

and that the total number of those jobs was only 1,500, rather

than the 3,600 found by the ALJ. This argument ignores the fact

that the vocational expert testified that the three jobs she

identified were not all of the light, unskilled jobs which

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someone with plaintiff’s restricted abilities could perform, but

simply “some examples” of such jobs and that the listing of these

three positions was “not exhaustive.” (Tr. 440). The expert

also testified that there were about 18,000 light, unskilled jobs

in the region, and that plaintiff could perform about 20%, or

3,600 of those jobs. This testimony was sufficient to permit the

ALJ to find that plaintiff could perform that number of jobs.

Plaintiff also argues, however, that the vocational expert’s

testimony about the three jobs she identified was not specific

enough to allow the ALJ to make any findings about those

positions or whether plaintiff could actually do those jobs. She

notes that the Dictionary of Occupational Titles identifies

several different cleaner positions, some of which are mediumstrength jobs, and at least one medium-strength sorter position. 

Additionally, she claims that not all laundry worker jobs can be

done at the light exertional level. She faults the ALJ for not

making a specific finding as to the DOT number of the jobs which

he found to be within plaintiff’s ability to perform, and

concludes that the Commissioner did not meet his burden at step

five of the sequential evaluation process of showing that despite

her inability to return to her past relevant work, plaintiff is

still able to engage in substantial gainful activity.

The Commissioner responds to this argument by assuming that

the gist of plaintiff’s complaint is that the testimony of the

vocational expert was not consistent with the Dictionary of

Occupational Titles. Social Security Ruling (SSR) 00-4p

provides, in part, that “[o]ccupational evidence provided by a VE

... generally should be consistent with the occupational

information supplied by the DOT. When there is an apparent

unresolved conflict between VE ... evidence and the DOT, the

adjudicator must elicit a reasonable explanation for the conflict

before relying on the VE .. evidence to support a determination

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or decision about whether the claimant is disabled.” The ALJ in

this case made a finding that Ms. Kaufman’s testimony was

consistent with the DOT (Tr. 24), and, as the Commissioner points

out, although the DOT does identify some cleaner, sorter, and

laundry worker positions as medium, it also classifies many such

positions as light. Thus, there is no direct inconsistency

between the DOT and the vocational expert’s testimony that these

three jobs exist at the light exertional level. Further, counsel

did not ask Ms. Kaufman any questions about any indirect

conflicts between the DOT and her testimony. Cf. Sterling v.

Comm’r of Social Security, 2008 WL 594503, *5 (W.D. La. February

3, 2008)(upholding an ALJ’s reliance on the vocational expert’s

testimony as consistent with the DOT because, among other

reasons, claimant’s counsel “did not cross-examine the expert

concerning any purported discrepancies in her testimony...”). 

Absent any direct inconsistency between the vocational

expert’s testimony and the DOT, and given the vocational expert’s

uncontradicted testimony about the number not only of those

representative jobs, but other light, unskilled jobs within

plaintiff’s ability to perform, a reasonable person could have

come to the same conclusion as did the ALJ - namely, that there

are a significant number of jobs at the light, unskilled level

which are not precluded by the limitations under which plaintiff

labors. Under the substantial evidence standard of review, that

is enough to sustain the ALJ’s decision. See, e.g., Jones v.

Chater, 72 F.3d 81, 82 (8th Cir. 1995)(it was “perfectly

acceptable” for an ALJ to rely on vocational expert’s testimony

that certain occupations classified as either medium or light by

the DOT could be done at the sedentary level “[b]ecause the

vocational expert specifically limited his opinion to reflect

sedentary work only...”). 

Plaintiff’s other assignment of error deals with the way in

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which the ALJ factored her obesity into his residual functional

capacity determination. According to plaintiff, the ALJ failed

to comply with SSR 02-1p, which addresses obesity, and which

provides, in part, that “[w]hen we identify obesity as a

medically determinable impairment..., we will consider any

functional limitations resulting from the obesity in the RFC

assessment, in addition to any limitations resulting from any

other physical or mental impairments that we identify,” and which

directs ALJs to determine “the effect obesity has upon the

individual's ability to perform routine movement and necessary

physical activity within the work environment.” Plaintiff argues

that the ALJ in this case simply failed to account for her

obesity in his residual functional capacity finding, and simply

mentioned it in passing without making any specific findings as

to how it affected her ability to perform work-related functions.

This argument is not supported by the record. The ALJ

specifically found that plaintiff’s obesity, in connection with

her other impairments, was severe. Dr. Nusbaum, on whose

testimony the ALJ relied in determining plaintiff’s residual

functional capacity, also identified obesity as one of

plaintiff’s impairments, and he stated that “all of th[e]

restrictions” which he found concerning her ability to do workrelated activities “are because of her body habitus.” (Tr. 434). 

Therefore, the ALJ did consider obesity as part of the residual

functional capacity inquiry, and did not violate SSR 02-1p. See

Coldiron v. Comm’r of Social Security, 391 Fed. Appx. 435, *8

(6th Cir. August 12, 2010)(“Given the ALJ's discussion of

Coldiron's obesity throughout his findings of fact and the ALJ's

use of RFCs from physicians who explicitly considered Coldiron's

obesity, we find that the ALJ adequately accounted for the

effect that obesity has on Coldiron's ability to perform

sedentary work”). The second assignment of error, like the

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first, lacks merit and provides no basis for either reversal or

remand.

 VIII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that judgment be

entered in favor of the defendant Commissioner of Social

Security.

IX. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

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United States Magistrate Judge

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